A key challenge for any analysis or discussion of phoenix activity is how to define the problem. There is currently no definition in Australian legislation. The approach in Australia has been to provide for disqualification of directors in certain circumstances (including incidences of phoenix activity) and set penalties for contravening the disqualification.

Other jurisdictions, such as New Zealand, have enshrined specific definitions of phoenix activity in legislation with accompanying penalties. At a basic level, phoenix activity is "the evasion of tax and other liabilities, such as employee entitlements, through the deliberate, systematic and sometimes cyclic liquidation of related corporate trading entities". For the purposes of stakeholder consultation, this was used as a working definition.